B-171883, MAR 15, 1971

B-171883, MAR 15, 1971

RETIREMENT DUE TO ILLNESS - UNEARNED SICK LEAVE DECISION HOLDING THAT NO FURTHER ACTION WILL BE TAKEN TO OBTAIN REFUND OF $1,202.40 OWED THE UNITED STATES BY THE LATE SAMUEL LOTVIN, A FORMER EMPLOYEE OF THE DEPARTMENT OF THE ARMY. THE FACT THAT MR. LOTVIN'S RETIREMENT MAY HAVE BEEN DUE TO HIS ILLNESS IS SUPPORTED BY HIS DEATH ON APRIL 7, 1970, AND THEREFORE FALLS UNDER SECTION 630.209, OF TITLE 5, CODE OF FEDERAL REGULATION. ACCORDINGLY, HIS ESTATE WILL NOT BE REQUIRED TO REFUND THE AMOUNT OF THE INDEBTEDNESS - $1,202.40 REPRESENTING 240 HOURS OF UNEARNED SICK LEAVE.

TO MR. H. C. MCDANIEL:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 18, 1970 (FINCY-T), ENCLOSING COPIES OF CORRESPONDENCE REQUESTING FURTHER CONSIDERATION ON THE APPLICATION FOR WAIVER OF AN ERRONEOUS PAYMENT OF PAY UNDER PUBLIC LAW 90- 616 WHICH WAS DENIED BY OUR CLAIMS DIVISION LETTER OF OCTOBER 15, 1970, IN THE CASE OF MR. SAMUEL LOTVIN. YOU SAY THAT REQUEST FOR RECONSIDERATION IS MADE BY THE ATTORNEY OF MRS. SAMUEL LOTVIN SINCE THE EMPLOYEE IS NOW DECEASED AS OF APRIL 7, 1970.

MR. LOTVIN WAS EMPLOYED BY THE DEPARTMENT OF THE ARMY, HEADQUARTERS, EASTERN AREA, TRAFFIC MANAGEMENT AND TERMINAL SERVICE, BROOKLYN, NEW YORK. THE RECORD SHOWS THAT DURING AUGUST AND SEPTEMBER 1969 MR. LOTVIN REQUESTED AND WAS AUTHORIZED ADVANCE SICK LEAVE TOTALING 240 HOURS. ADDITION, THROUGH ADMINISTRATIVE ERROR, HE WAS PAID AN ADDITIONAL 16 HOURS OF ADVANCE SICK LEAVE. THE TOTAL ADVANCE AMOUNTED TO 256 HOURS AT $5.01 PER HOUR OR $1,282.56. ON OCTOBER 31, 1969, HE RETIRED AND WAS PAID FOR 197 HOURS OF ACCRUED ANNUAL LEAVE IN THE GROSS AMOUNT OF $986.97.

IN OUR LETTER TO YOU OF OCTOBER 15, 1970, WE DENIED WAIVER FOR 240 HOURS IN THE GROSS AMOUNT OF $1,202.40, BUT WAIVED THE BALANCE OF 16 HOURS OF ADVANCE SICK LEAVE IN THE GROSS AMOUNT OF $80.16 WHICH WAS PAID TO MR. LOTVIN THROUGH ADMINISTRATIVE ERROR.

THE RECORD SHOWS THAT MR. LOTVIN BECAME DISABLED ON MAY 30, 1969, DUE TO A CORONARY THROMBOSIS, AND THAT HIS DOCTOR ESTIMATED THAT HE WOULD BE UNABLE TO RETURN TO WORK UNTIL SEPTEMBER 15, 1969. HE WAS GRANTED AN ADVANCE OF SICK LEAVE OF 20 DAYS BEGINNING AUGUST 26, 1969, AND WAS LATER GRANTED A FURTHER ADVANCE OF 10 DAYS SICK LEAVE EFFECTIVE SEPTEMBER 25, 1969. THERE IS NO INDICATION THAT MR. LOTVIN EVER RETURNED TO DUTY PRIOR TO HIS RETIREMENT EFFECTIVE OCTOBER 31, 1969 (STATED TO HAVE BEEN VOLUNTARY). WE NOTE, ALSO, THAT IN HIS LETTER OF JANUARY 5, 1970, MR. LOTVIN SAID THAT HE WAS "STILL NOT WELL, UNABLE TO WORK DUE TO MY CORONARY CONDITION, AND WITHOUT FUNDS."

WE NOTE THAT SECTION 630.209 OF TITLE 5 OF THE CODE OF FEDERAL REGULATIONS PROVIDES IN EFFECT THAT IF ANY EMPLOYEE WHO IS INDEBTED FOR UNEARNED LEAVE DIES OR RETIRES FOR DISABILITY OR RESIGNS OR IS SEPARATED BECAUSE OF DISABILITY HE WILL NOT BE REQUIRED TO REFUND THE AMOUNT OF THE INDEBTEDNESS. IN THE INSTANT CASE, IT WOULD SEEM REASONABLE TO VIEW MR. LOTVIN'S RETIREMENT ON OCTOBER 31, 1969, AS HAVING BEEN PRIMARILY DUE TO HIS ILLNESS, IN WHICH EVENT IT COULD BE SAID HE RETIRED FOR DISABILITY EVEN THOUGH HIS APPLICATION MAY NOT HAVE BEEN MADE ON THAT BASIS. IT IS RECOGNIZED THAT EVEN THOUGH AN EMPLOYEE MAY HAVE A BASIS FOR DISABILITY RETIREMENT HE WILL ELECT AFTER COUNSEL OR OTHERWISE TO RETIRE FOR AGE AND SERVICE. THIS IS SO BECAUSE IT AVOIDS MEDICAL EXAMINATIONS AND REPORTS AND BECAUSE OF NO DIFFERENCE IN THE AMOUNT OF THE ANNUTIY. THE FACT THAT MR. LOTVIN'S RETIREMENT MAY HAVE BEEN DUE TO ILLNESS IS SUPPORTED BY HIS DEATH ON APRIL 7, 1970. ADDITIONALLY, INFORMATION FURNISHED BY MRS. LOTVIN'S ATTORNEY UNDER DATE OF DECEMBER 4, 1970, INDICATES THERE ARE FEW IF ANY ASSETS LEFT IN MR. LOTVIN'S ESTATE. IN THE CIRCUMSTANCES, OUR OFFICE INTENDS TO TAKE NO FURTHER ACTION TO OBTAIN REFUND OF THE INDEBTEDNESS.